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[2021] ZAKZDHC 1
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Panday v University of KwaZulu-Natal and Others (D8171/2019) [2021] ZAKZDHC 1 (8 January 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE NO. D8171/2019
In the matter
between:
VISHAM PANDAY
and
Applicant
UNIVERSITY
OF KWAZULU-NATAL THE INFORMATION OFFICER:
First Respondent
UNIVERSITY OF KWAZULU-NATAL
THE
VICE-CHANCELLOR AND PRINCIPAL:
Second
Respondent
UNIVERSITY OF
KWAZULU-NATAL
Third Respondent
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand down is deemed to be 09h30 on 8 January 2021.
ORDER
The following order is
made:
(a)
The
first and second respondents are hereby ordered, within 30 days of
the service of this order upon them, to furnish to the applicant,

care of Vasu Naidoo Attorneys (
vasunaidooattorneys@gmail.com
),
the following information:
(i)
the period for which a safe house and
the provision of bodyguards has been provided by the first respondent
to Ms Avril Sahadew;
(ii)
the total costs to date in the provision
of the safe house and protection services in (i) above;
(iii)
any documentation, including invoices,
representing the costs incurred by first respondent to date in the
provision of a safe house
and protection services in (i) above, with
necessary redaction to withhold the location of the safe house and
the identity of the
protection personnel assigned to Ms Avril
Sahadew;
(iv)
the total costs incurred by the first
respondent to date in the course of conducting its internal
investigation into the illegal
offering of placements at the Nelson R
Mandela School of Medicine, known as ‘Operation Clever’.
(b) The respondents are directed, jointly and severally, to
pay the applicant’s costs, the one paying the other to be
absolved.
JUDGMENT
Chetty J
[1]
The applicant is a businessman resident in Durban and the founder and
sole member of an organisation called VP Justice Foundation, which is
described as a non-profit organisation dedicated to exposing

corruption and seeking out truth and justice. Despite its noble
objectives, the applicant has not produced a certificate of
registration
of the organisation in terms of the
Nonprofit
Organisations Act 71 of 1997
nor a founding statement of its
objectives. In as much as he is the ‘sole proprietor’ of
the organisation, it appears
to me that this organisation is the
alter ego of the applicant. Nothing however turns on the nature of
the organisation or any
defects in its purported existence, as the
application has been brought by the applicant in his personal
capacity and not by the
organisation.
[2]
The nature of this application stems from a request made by the
applicant
in terms of the Promotion of Access to Information Act 2 of
2000 (‘the Act’). According to him, in April 2018 he
became
aware of corruption at the university where placements at the
Nelson R Mandela School of Medicine
were
being offered in exchange for bribes. He also claimed to know of the
identity of one such person, now a medical practitioner,
who secured
his placement through such corrupt means. Instead of referring the
matter to the police or lodging a criminal complainant,
he decided to
conduct his own investigation resulting in him liaising with Ms Avril
Sahadew, a forensic audit specialist employed
by the university who
had led the investigation since 2016 into the very same allegations
which became the focus of the applicant’s
concern. According to
the university, Ms Sahadew’s investigations unearthed certain
irregularities which were referred to
the police’s Directorate
for Priority Crimes Investigations. Despite their name, the
investigations have dragged on for almost
four years without any
persons involved being criminally prosecuted or convicted. These
investigations are still ongoing, and for
reasons not quite apparent,
are considered ‘sensitive and confidential’. One would
have assumed that in the interests
of rooting out corruption, which
appears to permeate almost every facet of our society, the university
would have no hesitation
in exposing those involved in the
corruption, if for no other reason than to ensure the integrity of
the institution and to assure
candidates who apply to study at the
medical school that their applications are considered on merit alone.
[3]
Not to be unfair to the university, they have pursuant to the
investigations
suspended 21 employees, leading to resignations,
disciplinary enquiries and dismissals. A similar fate awaits a
further 10 employees.
These are all internal procedures. The one
individual, Mr R Dayanand, whom the applicant flagged as having
benefitted through this
corrupt scheme, has however been exonerated
by the university in their internal investigation. I point out that
in the answering
affidavit, the university states that ‘it has
been confirmed that Dayanand did not qualify as a medical
practitioner from
the first respondent’. That ought to have
been the end of the matter. However, in a supplementary affidavit by
the university,
it emerges that both the priority crimes section of
the police services (the Hawks) and the National Prosecuting
Authority are
still continuing with their investigation into Mr
Dayanand. The university does not explain whether its investigation
into Mr Dayanand
was flawed or whether further evidence has since
come to light. What is clear is that Mr Dayanand is still a person of
interest
in the eyes of the State.
[4]
The specific details of other individuals involved have not been made
public, In its supplementary affidavit, the university discloses that
a second set of investigators and a third set of prosecutors
have
since been assigned to the matter. What led to this is not evident
from the papers.
[5]
Despite me allowing the introduction of a supplementary affidavit by
the
university, which was intended to provide an update on the recent
progress in the investigations, there is no clear explanation
why an
investigation, which the university’s legal advisor describes
as ‘serious and high profile’, has taken
an inordinate
time to complete let alone lead to a prosecution, despite it spanning
a period of four years.
[6]
In pursuing his objective of uncovering allegations of corruption,
the
applicant appears to have exceeded the bounds of reasonable and
legitimate conduct with Ms Sahadew and is alleged to have made
defamatory statements towards the university’s employees in the
process. As a result, the university instituted legal proceedings
to
interdict the applicant from threatening or abusing its employees.
Although the applicant agreed to an interim restraining order
which
remains in place, the application is yet to be finalised although it
was set down to be heard on 26 February 2020. It is
not known why the
matter was not finalised on that date, although in reality, this
application seems to have overtaken the finalisation
of the interdict
proceedings.
[7]
Not satisfied that his efforts to obtain information from the
university
were met with an interdict, the applicant resorted to an
application for ‘information’ in in terms of regulation
10
[1]
read with section 53(1) of the Act, submitted via his attorney
on 20 May 2019. The application was brought by the applicant
asserting
his right of access to information for ‘public
benefit’. As to the particulars of the record to which access
was sought,
the applicant provided the following in section D of the
relevant form:
(a)
Documentary proof of the investigation into Mr Reshal Dayanand;
(b)
Documentary proof of the cost to the University of KwaZulu-Natal in
respect
of bodyguards for Ms Avril Sahadew;
(c)
Documentary proof of the costs in providing a ‘safe house’

for Ms Avril Sahadew and her family;
(d)
Copies of the report by Colonel Moloi with regard to the arrest of
the
perpetrators identified in ‘Operation Clever’.
In addition to the above,
the applicant also sought financial statements in respect of the
costs of Operation Clever from inception
to the date of the request.
This request for information was withdrawn by the applicant after he
ascertained that the university
was in fact a public body and not a
private body as contemplated in the Act.
[2]
[8]
In July 2019, through his attorney, the applicant delivered a second
request
for information to the university, having complied with all
the procedural formalities contemplated in the Act. The applicant
described
his request for a record in the following terms :
‘
(a)
my client is aware that there has been an ongoing internal
investigation (referred to as Operation Clever) by the University
of
KwaZulu-Natal into allegations that one Reshal Dayanand had
fraudulently been awarded a medical degree and that on the strength

of that degree he practised as a medical doctor. My client seeks to
be furnished with the following in this regard:
(i)
what is the outcome of
the aforesaid internal investigation?
(ii)
If the outcome of the
investigation is contained in a written report, my client requests to
be furnished a copy of such report;
(iii)
my client is aware that
an employee of the University of KwaZulu-Natal, Avril Sahadew, has
been taking part in the aforesaid investigations
and that she and her
immediate family have been provided with a safe house. My client
requires to be informed for how long a period
has the safe house been
so provided and
what
are the total costs involved. My client seeks to be provided with
documentary proof reflecting the total costs of providing
the safe
house to the said Sahadew.
(iv)
My client is aware that
the University of KwaZulu-Natal has been providing bodyguards for the
protection of the said Avril Sahadew.
My client seeks to be informed
as to the total cost thus far of providing the said bodyguards and
that documentary proof be provided
reflecting the said expenditure.
(v)
My client wishes to be
furnished with the total cost of conducting Operation Clever from
inception to date hereof, such to be accommodated
by financial
statements or similar documentation that reflect the said total
costs.’
[9]
In response, the university’s attorneys, for reasons that are
not
quite apparent nor advanced by counsel during the course of
argument, denied that the university was a public body and refused to

supply the records requested, relying on sections 36-38, 40,
44(1)
(a)
, 44(2) and 45 of the Act. The refusal prompted the
launching of this application in which the applicant contends that
the information
sought from the university does not constitute
commercial or confidential information, does not infringe or impede
the safety of
individuals and is not protected by any form of legal
privilege.
[10]
In opposing the request for information, the university contends that
the applicant has
failed to show a connection to the first respondent
in that he is neither a student nor a staff member, has no immediate
family
who are students or members of the university staff and has
accordingly not shown a legal basis for his claim to the information

sought. Furthermore, even if such right was established, the
university contends that the information sought is highly
confidential,
sensitive and he has failed to show that he requires
the information in order to defend or assert a lawful right. In any
event,
the university contends that a disclosure of such information
will compromise its ongoing investigation and place the persons
involved
in those investigations at risk. In light of its prior
history with the applicant and the interdict proceedings referred to
earlier,
it regards his motives as being opportunistic and doubts his
bona fides
. It also contended that complying with the request
would entail a diversion of substantial resources. I will deal with
each of
the grounds below. It is also necessary to point out that the
applicant, in his replying affidavit, sought to place much more
information
before the court in substantiation of his request, when
compared to his rather skeletal founding affidavit. It is well
established
that a party cannot seek to make out a case in reply, and
the applicant must stand or fall by the averments set out in his
founding
affidavit.
[11]
In dealing with the contention that the applicant does not establish
a right to the information
sought, it is correctly pointed out that
he provides no factual history of his affiliation to the university
or the purpose for
which he requires the information. I am not
persuaded by the university’s refusal based on its prior
interaction with the
applicant that it doubts his motives for seeking
the information. I agree that he is not a member of the South African
Police Services
and has no lawful grounds to conduct investigations
or to demand information from third parties, nor has he been
delegated any
authority by the university to conduct such an
investigation. To the extent that the applicant himself has garnered
certain information
into the corrupt practice of awarding of
placements to students at the medical school, he would be obliged to
bring such irregularities
to the attention of the police. The
contention of the applicant is that this matter has been referred to
the police to investigate
as a ‘priority crime’.
Despite a passage of four years, there has not been a single arrest
or prosecution. While
I agree that the applicant cannot don the
mantle of a lawfully appointed corruption buster, as a private
citizen he nonetheless
is entitled to hold the view that little or
nothing appears to being done to prosecute those involved in the
scandal. The lack
of accountability and non-responsiveness by public
institutions, when called upon to act, sows seeds of doubt and
suspicion in
the minds of ordinary, right thinking members of
society. It is in this context that this court must determine whether
the university
was justified in refusing to furnish the applicant
with the records and information sought in terms of the Act.
[12]
Despite maintaining the position that it is not a ‘public body’
as defined
in the Act, the university does not dispute that it is a
public body for the purposes of this application. In light of that
concession,
it is not necessary for the applicant to demonstrate that
the information or records he has requested are sought for the
purposes
of exercising or protecting a right. The only basis on which
the applicant’s request for information may be refused is if
a
valid ground of refusal is advanced.
Section 11(1) of the Act
sets out the requirements for a right of access to public records:
'A
requester must be given access to a record of a public body if —
(a)
that requester
complies with all the procedural requirements in this Act relating to
a request for access to that record; and
(b)
access to that record
is not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.'
[13] In this regard, the
court in
De Lange & another v Eskom Holdings Ltd &
others
[3]
stated:
‘
.
. . For public bodies, which include Eskom, the requester does not
need to explain why it seeks the information, let alone why
it
requires it for the exercise of its rights. In terms of s 11(1) of
PAIA a requester of information is entitled to the information

requested from a public body as long as it has complied with the
procedural requirements set in that Act and
as
long as none of the grounds of refusal are applicable
.
Those grounds of refusal are set out in Ch 4 of Part 2 of the Act.
[35]
Consequently the importance of access to information held by the
State or public or State entity as a means to secure accountability

and transparency justifies the approach adopted in s 32(1)(a) of the
Bill of Rights and in PAIA, namely that, unless one of the
specially
enumerated grounds of refusal obtains, citizens are entitled to
information held by the State or public entity as a matter
of right.
This is so regardless of the reasons for which access is sought and
regardless of what the organ of State believes those
reasons to be.’
[14] The court in
M&G
Media Ltd & others v 2010 FIFA World Cup Organising Committee
South Africa Ltd & another
[4]
explained the importance of distinguishing between a public
body and a private body:
‘
[145]
Following the dualistic scheme in s 32(1)
(a)
and
(b)
of the Constitution,
PAIA provides that if access is sought to a record held by a public
body, access must be provided as a matter
of right, unless a valid
ground of refusal is advanced.
[146]
By contrast, if access is
sought to a record held by a
private
body, the requester
must establish that he or she requires access to the record in order
to exercise or protect a right. Once this
has been shown, the
requester has a right of access to the records, which may be defeated
by a valid ground of refusal.
[147]
In any given case it is
therefore critical to establish whether the records to whichaccess is
sought are held by a public or a private
body.’ (Footnotes
omitted.)
[15] In
Competition
Commission of South Africa v Standard Bank of South Africa Limited
[5]
the Constitutional Court traced the history and importance of
the provisions of the Act:
‘
[10]
Against
the backdrop of secrecy that epitomised the apartheid state, section
32 of the Constitution constitutes an essential element
of the
constitutional guarantee of an open and democratic society which
requires that the exercise of public power be transparent
and
justified. The preamble to PAIA notes:
“
[T]he
system of government in South Africa before 27 April 1994, amongst
others, resulted in a secretive and unresponsive culture
in public
and private bodies which often led to an abuse of power and human
rights violations.”
[11]
In
Brümmer
,
this Court noted, in respect of the right to access information,
that: “The importance of this right [in section 32], in
a
country which is founded on values of accountability, responsiveness
and openness, cannot be gainsaid. To give effect to these
founding
values, the public must have access to information held by the State.
Indeed one of the basic values and principles governing
public
administration is transparency. And the Constitution demands that
transparency ‘must be fostered by providing the
public with
timely, accessible and accurate information’.”
[12]
In
contrast to its predecessor in the interim Constitution, the ambit of
the right of access to information held by the State in
section
32(1)(a) is wide. Section 32(1)(a) provides that everyone has the
right of access to
any
information
held by the State. Unlike the section 32(1)(b) right to access
information held by private parties, there is no stipulation
in
section 32(1)(a) that the information held by the State be “required
for the exercise or protection of any rights.”
The right in
section 32(1)(a) can only be limited in terms of section 36 of the
Constitution.
[13]
PAIA,
as the legislation envisaged in section 32(2) of the Constitution,
was passed to give effect to the rights in section 32(1).
It provides
that if the body in question is public, then an applicant need not
show that the record sought is required for the
exercise or
protection of any right. If the procedural requirements in PAIA are
complied with, the request must be granted unless
the public body
refuses access to the record in terms of a valid ground of refusal
contemplated in Chapter 4 of PAIA. In addition,
PAIA provides that a
requester’s right of access to information held by a public
body is not affected by any reasons given
by or imputed to the
requestor for the request. As this Court recently held in
Helen
Suzman
:
“
PAIA
affords any person the right of access to any information held by the
State. The person seeking the information need not give
any
explanation whatsoever as to why [they] require the information.
The
person could be the classic busybody who wants access to information
held by the State for the sake of it
.”’
(My emphasis, and
footnotes omitted.)
[16]
The opposition of the university to furnishing the applicant with the
information based
on their distrust of the applicant; that he is not
a member of the SAPS; that he has failed to establish the purpose for
which
he requires the information, and whether he needs it in order
to exercise any right, are irrelevant. As the Constitutional Court

pointed out, even the proverbial ‘busybody’ would be
entitled to information held by the State. The enquiry must therefore

be whether the remaining grounds of refusal are proper in terms of
the Act. The scope of enquiry was considered in
Transnet Ltd &
another v SA Metal Machinery Co (Pty) Ltd
[6]
where the SCA held:
‘
.
. . It contended that in an application under s 78 the relevant
material on which a court had to make its decision was limited
to
such material as was before the information officer when access was
refused. That cannot be right. A court application under
the Act is
not the kind of limited review provided for, for example under the
Promotion of Administrative Justice Act 3 of 2000
. It is much more
extensive. It is a civil proceeding like any motion matter, in the
course of which both sides (and the third party,
if appropriate) are
at liberty to present evidence to support their respective cases for
access and refusal. As the present matter
serves to illustrate, the
parties' respective cases in such an application will no doubt in
most instances travel beyond the limited
material before the
information officer. That conclusion is reinforced by the
Legislature's having catered for the presentation
of evidence and the
resolution of disputes of fact by reference to an
onus
of proof. . . .’
(Footnotes omitted.)
[17]
In
President of the Republic of South Africa & others v M &
G Media Ltd
[7]
Ngcobo
CJ writing for the majority, said the following about
s 81
with
regards to the evidential burden:
‘
[14]
In proceedings under PAIA, a court is not limited to reviewing the
decisions of the information officer or the officer who
undertook th
e
internal appeal.
It decides the claim of exemption from disclosure afresh, engaging in
a
de novo
reconsideration of
the merits. The evidentiary burden borne by the State pursuant to
s
81(3)
must be discharged, as in any civil proceedings, on a balance
of probabilities.
[15]
The imposition of the evidentiary burden of showing that a record is
exempt from disclosure on the holder of information is

understandable. To place the burden of showing that a record is not
exempt from disclosure on the requesting party would be manifestly

unfair and contrary to the spirit of PAIA read in the light of s 32
of the Constitution. This is because the requester of information
has
no access to the contents of the record sought and is therefore
unable to establish that it is not exempt from disclosure under
the
Act. By contrast, the holder of information has access to the
contents of the record sought and is able to establish whether
or not
it is protected from disclosure under one or more of the exemptions
contained in Ch 4. Hence s 81(3) provides that the evidentiary
burden
rests with the holder of information and not with the requester.’
(Footnotes omitted.)
[18]
The applicant’s request requires that the university provide
details of the outcome
of its internal investigation (Operation
Clever), a copy of the report as well as details of the duration for
which the university’s
forensic auditor has been relocated to a
safe house and documentary proof of the cost thereof. In addition,
the applicant seeks
the costs of the protection services allocated to
the forensic investigator, as well as the overall costs associated
with the investigation.
In relation to the last two requests, the
applicant seeks not only the amounts expended by the university, but
also documentary
proof in support of such expenditure. I assume that
what this would entail copies of invoices from the entity responsible
for the
provision of the safe house, as well as the company providing
the protection services.
[19]
The university does not dispute that the investigator, Ms Sahadew,
has been provided with
a safe house as well as bodyguards because of
threats to her safety. On this basis, the university contends that to
comply with
the request to provide information to the applicant would
entail it compromising and prejudicing the safety of the
investigator.
However, it does not go further to explain why this
would be so, and in what respects compliance with the request would
expose
the investigator to harm, even where the location of the safe
house and names of the body guards were to be withheld. In so far
as
the request to provide a copy of the report of its investigation, the
university contends that the provision of such information
would
cause it to divulge the identities of the persons who are implicated
in the investigation as well as any involvement of possible

syndicates. Any information released concerning the costs of the safe
house and the costs of the bodyguards would entail compromising
the
safety of the investigator, as the information sought by the
applicant would require the university to divulge the location
of the
safe house, the service provider, the identity of the bodyguards, any
safety features, the number of personnel involved
in the provision of
the security, all of which militate against compliance with the
request for information. To the extent that
the investigation is
still ongoing (as set out in the supplementary affidavit of the
university’s legal advisor), the request
for information could
entail that the university would have to disclose the names of likely
suspects. This would jeopardise the
prospects of successful criminal
prosecutions or internal disciplinary enquiries. In so far as the
release of information pertaining
to internal disciplinary enquiries,
it was submitted that this could entail the disclosure of privileged
information, possibly
implicating third parties who may be witnesses
at such enquiries or in the course of criminal prosecutions. On these
grounds, the
university contends that the information sought would
infringe the protections set out in section 40 of the Act.
[20]
In
De Lange v Eskom supra
at paras 118-119, the court stated:
‘
[118]
In cases of this kind the public body bears the burden of proving
that secrecy is justified. This burden of proof casts an
evidential
burden on the public body to allege sufficient facts that will
justify the refusal.
[119]
As held in the
President of RSA v M&G Media
case in para
15, true disputes of fact will seldom arise because the material
facts will generally be within the peculiar knowledge
of the public
body. However, if a genuine dispute of fact does occur the court must
scrutinise the affidavits put up by the public
body with particular
care …”
[21] After engaging in a
comparative analysis with similar statutes to the Act in the United
States, Canada and Australia, Ngcobo
CJ in
President of the
Republic of South Africa supra
, at para 22-25, said the
following:
‘
[22]
It is apparent from this comparative analysis of the standards
applied by courts in other jurisdictions with legislation comparable

to PAIA that the State may discharge its evidentiary burden
only
when it has shown that the record withheld falls within the
exemptions claimed
.
Exemptions are construed narrowly, and neither the mere
ipse
dixit
of the
information officer nor his or her recitation of the words of the
statute is sufficient to discharge the burden borne by
the State. . .
.
[23]
In order to discharge its
burden under PAIA, the State must
provide
evidence
that the
record in question falls within the description of the statutory
exemption it seeks to claim. The proper approach to the
question
whether the State has discharged its burden under s 81(3) of PAIA is
therefore to ask whether the State has put forward
sufficient
evidence for a court to conclude that, on the probabilities, the
information withheld falls within the exemption claimed.
[24]
. . . The affidavits for
the State must provide sufficient information to bring the record
within the exemption claimed. This recognises
that access to
information held by the State is important to promoting transparent
and accountable government, and people's enjoyment
of their rights
under the Bill of Rights depends on such transparent and accountable
government.
[25]
Ultimately, the question
whether the information put forward is sufficient to place the record
within the ambit of the exemption
claimed will be determined by the
nature of the exemption. The question is not whether the best
evidence to justify refusal has
been provided, but whether the
information provided is sufficient for a court to conclude, on the
probabilities, that the record
falls within the exemption claimed. If
it does, then the State has discharged its burden under s 81(3). If
it does not, and the
State has not given any indication that it is
unable to discharge its burden because to do so would require it to
reveal the very
information for which protection from disclosure is
sought, then the State has only itself to blame.’ (My emphasis,
and footnotes
omitted.)
[22]
The university broadly relies on sections 36,
[8]
37, 38, 40 and 44 of the Act to justify its refusal to produce
the requested information. These sections deal respectively with the

protection of commercial information of a third party (s 36),
protection of certain confidential information of a third party (s

37), protection of the safety of individuals (s 38), protection of
records privileged from production in legal proceedings (s 40)
and
protection of operations of public bodies relating inter alia to
reports and recommendations for the purposes of taking a decision
or
performing a duty imposed by law (s 44).  In
De Lange &
another v Eskom Holdings Ltd & others supra
para 37, the
court stated that:
‘
The
grounds of refusal relied on must be understood within the
legislative scheme which seeks to balance the rights of the requester

to have access to information, and a third party's rights to privacy
and to protect its commercial interests in a manner which
is
constitutionally defensible in terms of the limitations clause.’
[23]
To the extent that the university relies on section 34
[9]
which is aimed at the protection of privacy of a third party
who is a natural person in the context of its ongoing investigations

and the likely disciplinary enquiries which would entail scrutiny of
personnel files and personal information, this section must
be read
with s 47(1) which provides that:
‘
The
information officer of a public body considering a request for access
to a record that might be a record contemplated in section
34 (1), 35
(1), 36 (1), 37 (1) or 43 (1) must take all reasonable steps to
inform a third party to whom or which the record relates
of the
request.’
[24]
The facts in this matter are not dissimilar to that in
Centre for
Social Accountability v Secretary of Parliament & others
[10]
which concerned
an application in terms
of section 78(2) read with section 82 of the Act, where the Speaker
of Parliament refused a request to grant
the applicant, an
independent body dedicated to ensuring accountability of public
resources, access to information. The request
pertained to the
alleged abuse of the parliamentary travel voucher system which in
fact became known as the ‘Travelgate’
scandal. In
considering whether
the disclosure of information would amount
to an ‘unreasonable disclosure of personal information’,
as contemplated
in s 34, the court in para 72 explained this as a
‘twopart test’:
‘
It
is a two-part test. The first part is that the objector must
establish a subjective expectation of privacy. In this regard I

venture to suggest that the objector must first establish that the
nature of the information is covered by the freedom of identity

principle, ie that subjectively viewed it is part of the inner
sanctum of the private and personal life of the individual. The

second part is that, objectively assessed, society must recognise
such expectation as reasonable.’
The court elaborated on
this test in para 74:
‘
.
. . The first step is to ask if the information said to be 'personal'
is covered by the principle of freedom of identity. If so,
does the
individual subjectively harbour a legitimate and reasonable
expectation that such information will be protected by the
right to
privacy? If both questions are answered in the affirmative, then the
enquiry proceeds to the second stage by determining
whether or not
society has a legitimate and reasonable expectation, objectively,
that such information is protectable. If so, then
the disclosure of
the information will be 'unreasonable' within the meaning of that
expression in s 34(1). This is so because personal
information which
may be reasonably disclosed is not recognised by society as personal,
and no longer enjoys the protection of
the right to privacy under s
14 of the Constitution. In this sense, such information falls outside
the scope of protectable information,
notwithstanding that such
information may be personal in nature.’
[25]
In applying the two-stage test to the facts before it, the court
reasoned as follows:
‘
[77]
.
. .
Does the
information contained in the schedules relate to the inner sanctum of
privacy of a person covered by the principle of freedom
of identity?
The answer is 'No'. [78] The inner sanctum of a person which is
shielded from public scrutiny concerns his/her intimate
family life,
sexual preference, ethnic or social origin, colour, physical or
mental health, religion, conscience, belief and culture,
and all
those other categories mentioned in the definition of 'personal
information' under s 1 of PAIA.
[79]
It is information about
and concerning the person of an 'identifiable individual' as statedin
both the definition section and in
s 34(2) of the Act. It is, in
essence, personal information, protected by the principle of freedom
of identity
.
. .
In
Deutschmann
NO
supra the court
held that the concept of privacy does not extend to a person's
business affairs.
[80]
The personal life of a
member of Parliament, his or her personal preferences and beliefs,
how he or she chooses to live his or her
personal life, what they do
on vacation in the privacy of their holiday homes — even if
they travel there on State expense
— how they spend their money
and how much money they have to spend, all of this is of no concern
to the State. It is their
business, not that of the State. Such
information is covered by the principle of freedom of identity. But
how they execute their
duties as members of Parliament, under what
circumstances they claim payment in respect of travel vouchers, and
whether or not
they obey the rules of Parliament and act in
accordance with the code of conduct which society expects from its
members of Parliament
— all of this is the business of the
State. The State has the right to know, and through the State, the
members of society
who have elected the members of Parliament in an
open and democratic society. The information sought is in relation to
claims in
respect of travel vouchers issued to members of Parliament
in their official capacities as members of a public body. Such
information
does not concern their private lives and is specifically
excluded by s 34(2)
(f)
(iii).’
[26] In
De Lange v
Eskom supra
where a financial journalist requested documents
relating to pricing formulas of a transaction which Eskom concluded
with another
company, the court rejected the refusal and held:
‘
[72]
. . . It was incumbent on the refuser to lay the basis why it averred
that such a disclosure would involve unreasonable disclosure
of
personal information. In all refusals the holder of the requested
information must convince the court why its refusal should
be upheld.
It must, in its affidavit, furnish cogent grounds why otherwise
disclosable data or information should not be disclosed.
.
. .
[74]
It was submitted on behalf of the respondents that if the particulars
of the signatories are disclosed, the latter may be harassed
or
subjected to public attacks. The above is a bland statement which in
my view is not substantiated in any way in the papers.’
[27]
In the present matter the applicant is aware of the identity of Ms
Sahadew, and her role
in the investigation. What he seeks is whether
Operation Clever is completed, and if so, the outcome thereof, and a
copy of a written
report, if one was compiled. The answer to this
query is simple. The university states that the investigation is
still ongoing,
and as such, the request for a written report is, at
best, premature. In need not be concerned with any further grounds of
refusal.
The difficulty with the remainder of the request, in my
view, is in relation to details of the safe house and provisions of
security
protection services to Ms Sahadew.
[28]
The university says that to disclose such information will put the
life of Ms Sahadew at
risk. The applicant appears to recognise this
and therefor confines his request for details only to the period for
which this safe
house has been used and the costs incurred in respect
thereof. In so doing, he submits that the university can disclose
this information
without placing Ms Sahadew or any other persons
under protection, at risk. The university relies on s 38 of the Act
in refusing
to disclose the requested documents. If one has regard to
the specific information sought, the applicant requires the duration
for which the house has been used, and vouches or documentary proof
of such expenses incurred. The request does not entail a disclosure

of the identity of any other persons who may be utilising the safe
house nor divulging the details of any syndicate involved. As
such,
there can be no threat to the ongoing investigations being
jeopardised. The university, in my view, misinterprets the request
by
the applicant. He does not request the disclosure of where the house
is located or ‘how it is made safe’ (whatever
that may
mean as alleged by the university), nor does he necessarily seek
information of the identity of those providing the services,
although
it does form part of the request. The same can be said of the
applicant’s request in relation to the bodyguards.
[29]
In respect of both the costs of the safe house and the bodyguard
protection services, I
see no reason why the university cannot
provide details of the costs incurred and the duration of the
services rendered. To the
extent that ‘documentary proof’
has been sought by the applicant, if this would entail a disclosure
of the location
of the safe house or the identity of the bodyguards,
these details could be redacted. While the university’s grounds
for
refusing to disclose
all
of the information sought have
some merit, it has not explained why it cannot redact the sensitive
information. In this regard,
s 28(1) of the Act provides the
following:
‘
28.
Severability.—(1) If a request for access is made to a record
of a public body containing information which may or must
be refused
in terms of any provision of Chapter 4 of this Part, every part of
the record which—
(a)
does not contain; and
(b)
can reasonably be severed
from any part that contains,
any
such information must, despite any other provision of this Act, be
disclosed.’
[30]
In
Van der Merwe & another v National Lotteries Board,
[11]
the court stated: ‘
.
. . what section 28 of PAIA requires is severance where it is
practically reasonable. Severance would be unreasonable if the
disclosure of what remains would,
inter
alia,
provide clues
to the contents of the deleted portions. (Currie and Klaaren
The
Promotion of Access to Information Act Commentary
at
91.) The NLB has redacted portions of the minutes apparently in such
a way as not to provide such clues, and this ought not to
be
condemned.’
Where the disclosure of information may
result in the release of confidential information of third parties,
this can be overcome
by the university giving prior notice to third
parties in terms of section 47 of the Act. The respondents have not
explained whether
they considered these options.
This process was followed
(albeit in a flawed manner) in
Centre for Social Accountability v
Secretary of Parliament & others, supra
. However, the court
in that matter ultimately found that the provisions of s 34 of the
Act were not relevant since there would
be ‘no unreasonable
disclosure of personal information’ given that the information
disclosed related to the individuals
only insofar as their official
activities as parliamentarians (and not their personal life) was
concerned.
[31]
While the university objects to disclosing the name of the entity
providing the security
services, I can see no reason why this should
be refused. For the same reasons, I cannot find any lawful basis for
refusing to
disclose the costs of Operation Clever to date. The
applicant, as stated earlier, need not show a reason for him wanting
this information.
However, I think that such disclosure would promote
the interests of transparency and accountability, especially in times
when
students are advocating against the escalating costs of fees and
where the university by its own admission in these papers, is
operating under strained resources. Disclosure of the amounts spent
on this investigation to date and service providers procured
by the
university would serve to refute any suggestion of nepotism or any
other criticism on the selection of the service provider
and costs
incurred. Once those details are provided, not only the applicant but
any interested party may be at liberty to draw
conclusions as to
whether there has been wasteful expenditure or whether the university
acted in accordance with sound governance
principles. As stated in
De
Lange & another v Eskom (supra):
‘
[39]
If grounds of refusal do apply it must still be investigated whether
the disclosure of the information is required or justified
in terms
of s 46 of PAIA, ie where it is in the public interest to so make
such a disclosure.
[40]
Section 46 of PAIA provides as follows:
'Despite
any other provision of this Chapter, the information officer of a
public body must grant a request for access to a record
of the body
contemplated in section 34(1), 36(1), 37(1)
(a)
or
(b)
,
38
(a)
or
(b)
, 39(1)
(a)
or
(b)
, 40,
41(1)
(a)
or
(b)
, 42(1) or (3), 43(1) or (2), 44(1) or
(2) or 45, if —
(a)
the disclosure of the
record would reveal evidence of —
(i)
a substantial
contravention of, or failure to comply with, the law; or
(ii)
an imminent and
serious public safety or environmental risk; and
(b)
the public interest
in the disclosure of the record clearly outweighs the harm
contemplated in the provision in question.'
See also
Qoboshiyane NO
& others v Avusa Publishing Eastern Cape (Pty) Ltd &
others
:
[12]
‘
.
. . Assuming, as I have done for the purposes of this argument, that
the grounds advanced by the MEC constituted grounds upon
which he was
entitled ('may') to refuse access, there was nonetheless an
obligation on him to weigh the harm that would arise from
disclosure
against the public interest in disclosure. It does not appear from
the record that he undertook that exercise.’
[32] To the extent that
the university refuses to disclose the information requested on the
grounds that it is ‘privileged
from production in legal
proceedings’ as contemplated in section 40 of the Act, neither
the answering nor supplementary affidavits
make any references to
legal proceedings presently underway, although there is a reference
to disciplinary enquiries and a criminal
investigation. Thus far, no
prosecutions have been instituted. I am unable to ascertain how the
disclosure of the costs of Operation
Clever, that of a safe house and
of bodyguard protection services can in any way adversely impact on
pending disciplinary enquiries
or prosecutions. More still, I am not
convinced on the facts before me that section 40 can serve as a
blanket ban to prevent the
applicant from obtaining some or most of
the information requested. In
National Director of Public
Prosecutions v King
,
[13]
the Supreme Court of Appeal discussed the meaning of
‘privilege’:
‘
[1]
. . . In our law, following English precedent, the general rule is
that one is not entitled to see his adversary’s brief.
This is
referred to as litigation privilege, something different from
attorney and client privilege. However, as the Constitutional
Court
has held in
Shabalala,
a “blanket”
docket privilege in criminal cases conflicts with the fair trial
guarantee contained in the Bill of Rights.
Accordingly, litigation
privilege no longer applies to documents in the police docket that
are incriminating, exculpatory or
prima
facie
likely to be
helpful to the defence. This means that an accused is entitled to the
content in the docket “relevant”
for the exercise or
protection of that right. The entitlement is not restricted to
statements of witnesses or exhibits but extends
to all documents that
might be “important for an accused to properly ‘adduce
and challenge evidence’ to ensure
a fair trial”.
[2]
The blanket privilege has not been replaced by a blanket right to
every bit of information in the hands of the prosecution.
Litigation
privilege does still exist, also in criminal cases, albeit in an
attenuated form as a result of these limitations Litigation
privilege
is in essence concerned with what is sometimes called work product
and consists of documents that are by their very nature
irrelevant
because they do not comprise evidence or information relevant to the
prosecution or defence.’ (Footnotes omitted.)
[33]
Throughout the respondents’ submissions, reliance has been
heavily placed on the
contention that the applicant has failed to
demonstrate a right to the information sought, or a ‘reasonable
motive for acquiring
it’. In doing so, the respondents failed
to recognise that the Act places no such obligation on a requester
who requests
information from a public body. It was submitted that
the request may be refused on grounds that it is manifestly frivolous
or
vexatious, and that it would take an inordinate amount of time to
respond to a request to provide vouchers and invoices. The latter

ground has been rejected as a basis for refusal. In
Paruk &
Partners v eThekwini Municipality
,
[14]
the requester sought information from the municipality that
concerned the roster system it used for utilizing the services of
certain
professionals. The applicant requester was no longer
receiving work from the municipality. The court commented that:
‘
I
think it is in the nature of the Act that the persons from whom
information is required or the bodies from whom information is

required, will always regard such requests as vexatious because it
involves a certain degree of work which would not normally be
done.
But that, it seems to me, is the very object of having information
officers who must deal with this kind of information and
should not
be astute to regard such requests as being unnecessarily
diversive.’
[15]
The court rejected the
refusal to provide the information in terms of s 45 of the Act,
stating that there is no requirement in the
Act that the requester
must give reasons to explain why it seeks the information.
[34]
In support of his submission that the applicant lacked
bona fides
and that the request was frivolous and vexatious, the
respondent’s counsel relied on
Belwana v MEC for Education,
Eastern Cape & another
[16]
where the court had to consider whether an aggrieved educator
who applied for the post of head of department at a school and who

was not shortlisted, should be entitled to the minutes of the
shortlisting meeting, the scores of panellists and the
recommendations
made as to the filling of posts. In considering
whether the request was ‘manifestly frivolous and vexatious’
in terms
of s 45 of the Act the court concluded that, because the
information sought did not relate to the applicant – because it
related to ‘interviews from which she was excluded’,
[17]
the department was entitled to refuse the request. The court
stated that it could find ‘no valid reason why the applicant
should be entitled to information regarding a process that she was
not a part of’.
[18]
I do not agree with the reasoning in
Belwana
and find
that it raises the bar higher than the Constitutional Court’s
proverbial ‘busybody’ referred to by Madlanga
J in the
majority judgment in
Helen Suzman Foundation v Judicial Service
Commission
[19]
,
who may seek the information for no particular reason at all.
[35]
In any event, the word ‘frivolous’ has been said to
convey something with ‘no
serious purpose’ and
‘vexatious’ means causing ‘annoyance or distress’
or taking actions ‘purely
to cause trouble or annoyance’.
[20]
The court in
CCII Systems
noted that, read together, the
terms ‘frivolous or vexatious’ ‘indicate a desire
to prevent misuse of the Act,
and abuse of the rights granted by the
Act for purposes other than the Act seeks to achieve’.
[21]
Despite the university submitting that the applicant is not
bona fid
e as he has not shown a connection to the university
or demonstrated his purpose for wanting the information, I am not
persuaded
that he can be denuded of his right to request information
from a public body. No case has been made out on the papers of an
ulterior
purpose, malicious or mischievous motive.
[22]
There is equally nothing before me that suggest the applicant
has embarked on this process to cause the university financial or
other prejudice. The fact that an interdict has been secured against
him from harassing or threating employees of the university
alone is
insufficient to reach a conclusion that his application was frivolous
or vexatious.
[36]
In the final analysis, the respondents have failed to discharge the
evidential burden as
explained in
President of the Republic of
South Africa & others v M & G Media Ltd.
As I have
pointed out, the investigation of the university is still ongoing and
so is the investigation by the police. For those
reasons, any request
for a written report into Operation Clever is premature. As far as
the nature of the information sought in
Item D, 1(a)(iii), (iv) and
(v) is concerned, I am of the view that the request contained therein
could have been complied with,
with due redaction in order to protect
the safety of the investigator and the identity of the bodyguards
assigned to protect her.
That apart, as I have stated earlier, the
disclosure of information by public bodies serves to embolden the
crucial threads of
accountability and responsiveness, and advances
the strength of our democracy. Non-disclosure, without good reason,
only serves
to undermine the reputation and effectiveness of public
bodies and provides fertile ground for rumour and speculation. The
order
below, consistent with section 82, is considered just and
equitable, weighing the interests of the applicant to information
held
by a public body as against the interest of the university,
which is still in the process of an ongoing (and slow) investigation

as well as the equally slow steps by the National Prosecution
Authority in criminally charging those implicated. In exercising
of
my discretion, I have granted the applicant access only to such
information that does not imperil the ongoing investigations
and
enquiries.
[37]
In the result, the applicant has been substantially successful.
The university’s
grounds for wanting to withhold disclosure of
the information were found to be wanting. Although the applicant has
been characterised
as a ‘busybody’, he was entitled to
bring the application in order to vindicate his rights under the Act.
I see no
reason why he should not be entitled to his costs of doing
so.
[38]
I accordingly make the following order:
(a)
The
first and second respondents are hereby ordered, within 30 days of
the service of this order upon them, to furnish to the applicant,

care of Vasu Naidoo Attorneys (
vasunaidooattorneys@gmail.com
),
the following information:
(i)
the period for which a safe house and
the provision of bodyguards has been provided by the first respondent
to Ms Avril Sahadew;
(ii)
the total costs to date in the provision
of the safe house and protection services in (i) above;
(iii)
any documentation, including invoices,
representing the costs incurred by first respondent to date in the
provision of a safe house
and protection services in (i) above, with
necessary redaction to withhold the location of the safe house and
the identity of the
protection personnel assigned to Ms Avril
Sahadew;
(iv)
the total costs incurred by the first
respondent to date in the course of conducting its internal
investigation into the illegal
offering of placements at the Nelson R
Mandela School of Medicine, known as ‘Operation Clever’.
(b) The respondents are directed, jointly and severally, to
pay the applicant’s costs, the one paying the other to be
absolved.
M R CHETTY
Appearances
For the
applicant:
P Haasbroek
Instructed by:
Vasu Naidoo &
Associates
Address:
85 Percy
Osborne Road, Windermere, Durban
Ref:
Mr V Naidoo
Email:
vasunaidooattorneys@gmail.com
For the
Respondents:
M B Pitman
Instructed by:
Shepstone &
Wylie
Address:
Ridgeside
Office Park, Umhlanga Rocks
Ref:
MJB/kah/UNIV2.511
Email
bagwandeen@wylie.co.za
Date reserved:
07 September
2020
Date of
delivery:
8 January 2021
[1]
Regulations regarding the Promotion
of Access to Information, GN R187,
GG
23119,
15 February 2002.
[2]
Our courts have considered
different tests to establish whether a body is public or private.
See
Mittalsteel South Africa Ltd (Formerly Iscor Ltd) v
Hlatshwayo
2007 (1) SA 66
(SCA) and
M&G Media Ltd & others v 2010 FIFA World Cup
Organising Committee South Africa Ltd & another
2011
(5) SA 163
(GSJ). In
Khadi v University of Venda & others
[2015] JOL 32942
(LT) the court
found that the university was a public body.
[3]
De Lange & another v Eskom Holdings Ltd & others
2012
(1) SA 280
(GSJ) paras 34-35.
[4]
M&G Media Ltd & others v 2010 FIFA World Cup Organising
Committee South Africa Ltd & another
2011
(5) SA 163
(GSJ) paras145-147.
[5]
Competition Commission of South Africa v Standard Bank of South
Africa Limited
[2020] 2 ZACC; 2020
JDR 0685 (CC) paras 10-13.
[6]
Transnet Ltd & another v SA Metal Machinery Co (Pty) Ltd
2006
(6) SA 285
(SCA) para 24.
[7]
President of the Republic of South Africa & others v M & G
Media Ltd
2012 (2) SA 50
(CC) paras
1415.
[8]
This appears to be an error as the
founding affidavit appears to be directed to an opposition in terms
of s 34(1) which provides
that an ‘information officer of a
public body must refuse a request for access to a record of the body
if its disclosure
would involve the unreasonable disclosure of
personal information about a third party, including a deceased
individual.’
[9]
The respondent incorrectly
attributes this ground of opposition to s 36(1) in para 22 of its
answering affidavit.
[10]
Centre for Social Accountability v Secretary of Parliament &
others
2011 (5) SA 279 (ECG).
[11]
Van der Merwe and another v National Lotteries Board
[2014]
ZAGPPHC 240 para 40.
[12]
Qoboshiyane NO & others v Avusa Publishing Eastern Cape (Pty)
Ltd & others
2013 (3) SA 315
(SCA) para 14.
[13]
National Director of Public Prosecutions v King
2010
(7) BCLR 656
(SCA) paras 1-2.
[14]
Paruk & Partners v eThekwini Municipality
[2005]
JOL 16287 (D).
[15]
Paruk & Partners
at 3.
[16]
Belwana v MEC for Education, Eastern Cape & another
2017
(6) SA 182 (ECB).
[17]
Belwana
para 33.
[18]
Belwana
para 34.
[19]
Helen Suzman Foundation v Judicial Service Commission
2018
(4) SA 1 (CC).
[20]
CCII Systems (Pty) Limited v MGP Lekota NO
2005
JDR 0471 (T) para 34.
[21]
CCII Systems
para 34, citing Currie
and J Klaaren
The
Promotion of Access to Information Act
Commentary
.
[22]
Price Waterhouse Coopers Inc & others v National Potato
Co-Operative Ltd
2004 (6) SA 66
(SCA) at 81A-B where the Supreme Court of Appeal held that:
‘
Frivolous
or vexatious litigation has been held to be an abuse of process . .
. and it has been said that “an attempt made
to use for
ulterior purposes machinery devised for the better administration of
justice” would constitute an abuse of the
process. . .’.